Lytle v. Southern Ry. Co

• Decision Date: 09 December 1907
• Docket Number: (No. 670.)
• Citation: 59 S.E. 595,3 Ga.App. 219
• Court: Georgia Court of Appeals
• Parties: LYTLE et al. v. SOUTHERN RY. CO.

59 S.E. 595

3 Ga.App. 219

LYTLE et al.

v.SOUTHERN RY. CO.

(No. 670.)

Court of Appeals of Georgia.

Dec. 9, 1907.

Venue—Nonresident Railway Company —

Action Ex Delicto.

A suit ex delicto against a nonresident railway company, arising out of its failure to deliver safely a shipment of goods at a point in another state, may be brought in any county in this state in which legal service of process can be made.

(Syllabus by the Court.)

Error from City Court of Floyd County; Harper Hamilton, Judge.

Action by L. Lytle and others against the Southern Railway Company. Judgment for defendant, and plaintiffs bring error. Reversed.

Lytle and Shead brought suit against the Southern Railway Company in the city court of Floyd county, alleging that the defendant was a common carrier having an office and agent in said county; that In November, 1905, the plaintiffs delivered to said railway company at Rome, in said county, a car load of cattle, which it accepted and agreed to transport to Tampa, Fla., and "said cattle were consigned to and to be delivered to said plaintiffs at Tampa, Fla., but, * * * notwithstanding that two Jersey cows and four calves were delivered to said company and placed on board the cars of said com pany at Rome, Ga., the said company failed to deliver the same to petitioners at Tampa, Fla., or at any other place, and failed and refused to account to petitioners for said cows and calves or to pay them therefor. Petitioners are unable to state what the said company did with said cows and calves, but petitioners show that the said company disposed of said cattle in some way unknown to petitioners, and failed and refused to deliver the same to petitioners, and failed to pay petitioners the market value thereof." The plaintiffs proved their case as alleged in the petition, except that they showed that, when they delivered the shipment to the agent at Rome, they gave information that they would desire to add to it as it passed through Atlanta. No bill of lading was issued until the cattle arrived in Atlanta. The freight was paid from Rome to Atlanta. Upon their arrival in the latter city, the cattle were unloaded and fed, and several more cows were added to the shipment. Although the bill of lading was issued in Atlanta, one of the plaintiffs testified that he made a through contract from Rome to Tampa, and that all of the lost cattle were shipped from Rome. The court granted a nonsuit on the ground that the venue was not shown.

M. B. Eubanks, for plaintiffs in error.

Shumate, Maddox & McCamy and Geo. A. H. Harris & Son, for defendant in error.

POWELL, J. (after stating the facts as above). Our statute fixing the venue of suits against railway companies is found in section 2334 of the Civil Code of 1895, as follows: "All railroad companies shall be sued in the county in which the cause of action originated, by any one whose person or property has been injured by such railroad company, its officers, agents or employes, for the purpose of recovering damages for such injuries; and also on all contracts made or to be performed in the county where suit is brought; any judgment rendered in any other county than the one in which the cause so originated shall be utterly void. But if the cause of action arises in a county where the railroad company liable has no agent, then suit may be brought in the county of the residence of such company." The venue of all cases not falling within the provisions of this section is governed by the general law. The Southern Railway Company is a nonresident corporation. Such corporations are within the purview of this section as to contracts made and torts committed in this state. Hazlehurst v. Seaboard Air Line Railway, 118 Ga. 858, 45 S. E. 703; Mitchell v. Southern Ry. Co., 118 Ga. 845, 45 S. E. 703; Coakley v. Southern Ry. Co., 120 Ga. 960, 48 S. E. 372. The statute, however, does not cover the case of a tort committed in another state by a nonresident corporation. South Carolina Ry. Co. v. Dietzen, 101 Ga. 730, 29 S. E. 292; Reeves v. Southern Ry Co., 121 Ga. 561, 49 S. E. 674, 70 L. R. A. 513.

The trial court evidently took the view that from Rome to Atlanta there was one complete shipment, from Atlanta to Tampa another. While the evidence was such that we do not think the court was justified...